Barlow and Others v The Minister for Communications, Marine & Natural Resources and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Brian Murray
• Judgment Date: 11 April 2025
• Neutral Citation: [2025] IESC 14
• Court: Supreme Court
• Docket Number: Supreme Court Appeal Numbers: S:AP:IE:2023/110 High Court Record Number: 2006/2687P

Between

Paul Barlow, Woodstown Bay Shellfish Ltd., Michael Crowley, Riverbank Mussels Limited, Gerard Kelly, Fresco Seafoods Limited, Tardrum Fisheries Limited, Alex McCarthy, and Halcome Merchants (Ireland) Limited Trading as Alex McCarthy Shellfish

Plaintiffs/Appellants

and

The Minister for Communications, Marine & Natural Resources, The Registrar General of Fishing Boats, Ireland and The Attorney General

Defendants/Respondents

[2025] IESC 14

O'Donnell C.J.

Charleton J.

O'Malley J.

Murray J.

Donnelly J.

Supreme Court Appeal Numbers: S:AP:IE:2023/110

Court of Appeal Record Number: 2019/345

High Court Record Number: 2006/2687P

AN CHÚIRT UACHTARACH

THE SUPREME COURT

Negligence – Liability – Damages – Plaintiff seeking damages for negligence – Whether the defendants were liable to the plaintiffs in the tort of negligence

Facts: The appellants claimed damages for breach of statutory duty, breach of constitutional duty, breach of their constitutional rights, legitimate expectation, what was termed ‘unlawful delegation’, breach of EU law, negligence and negligent misstatement. The High Court dismissed those claims ([2019] IEHC 416). In the course of their appeal against that decision, the plaintiffs restricted their complaints to the High Court’s rejection of their claims in negligence and for breach of constitutional rights. The Court of Appeal dismissed that appeal ([2022] IECA 179). The Supreme Court granted leave to appeal ([2023] IESCDET 129) as to the issue of whether the defendants, as public bodies exercising a public function, were liable to the plaintiffs in the tort of negligence for the mismanagement of the State’s mussel seed resource.

Held by Murray J that: (1) in theory a duty of care of the nature alleged by the plaintiffs might in law arise from the dealings between the plaintiffs and the defendants around the making by the plaintiffs of their investments in the development of their mussel fishing and farming businesses between 2002 and 2004; (2) what generates any such duty of care is the combination of (a) the fact that the defendants actively solicited investment in the mussel seed sector, (b) the fact that the involvement of the plaintiffs in the sector was necessary to achieve the objective set by the defendants in the furtherance of the public interest, (c) the fact that the plaintiffs were making significant personal investments the recoupment of which was dependant upon the availability to them of specified allocations of mussel seed, (d) the fact that it was open to the defendants in their engagement with the plaintiffs to disclaim any obligation to the plaintiffs to manage the resource in a particular way, (e) the fact that the essential contents of the duty of care correspond with the statutory obligation that has been imposed on the defendants, and (f) that the economic losses for which the defendants can be made liable are only those arising from lost investments; (3) if the conditions are met then there is no reason why it is other than just and reasonable to impose a duty of care; (4) the standard of care imposed by the law on the defendants equates to the requirements of reasonableness imposed by administrative law before the exercise of the discretion to allocate mussel seed could be found invalid; (5) if that duty of care were found to so arise from such an assumption of responsibility, it is a duty not to cause to the plaintiffs the loss of the monies so invested. Murray J held that this resolved some aspects of the duty of care issue, and it defined the precise case the plaintiffs may advance in negligence against the first defendant, the Minister for Communications, Marine and Natural Resources; it resolved the question of the standard of care while leaving a number of other matters that remained to be resolved.

Murray J allowed the appeal and remitted the proceedings to the High Court for determination.

Appeal allowed.

JUDGMENT of Mr. Justice Brian Murray delivered this 11 ^th day of April 2025

INDEX 1

I THE BACKGROUND	3
This case	3
The context	6
Implementing the National Development Plan	8
The plaintiffs' investments and their dealings with the Department	13
The voisinage agreement	20
SMAC and the allocation of mussel seed on an ‘all Ireland’ basis	23
Allocations to the plaintiffs	25
II THE PROCEEDINGS AND THE TRIAL	28
The essential complaints	28
The institution of these proceedings and Barlow II	28
Subsequent proceedings	29
The evidence	30
(i) The allocation process	31
(ii) The expert evidence	32
(iii) Evidence as to loss	36
The argument	37
III THE JUDGMENTS OF THE HIGH COURT AND COURT OF APPEAL AND THE ISSUES BEFORE THIS COURT	39
The High Court	39
The Court of Appeal	41
The challenges presented by the plaintiffs' claims	43
Defining the case in negligence	44
(i) The duty	45
(ii) The losses	46
(iii) The legal basis for the asserted duty of care	49
IV ANALYSIS	49
The legal context	49
The identification of a duty of care	51
The correct approach to the identification of the duty of care in a novel situation	56
Assumption of responsibility	59
Economic loss	63
Application of these principles to this case	67
Statutory functions	71
The availability of judicial review	75
The relationship between ‘public law’ invalidity, and liability in negligence	78
The proper approach to negligence actions arising from the exercise or non-exercise of a statutory discretion	80
The standard of care	82
Cromane	86
Bates	92
The relevance of the statute	93
Has there been an effective disclaimer?	94
V THIS CASE	95
Summary of relevant principles	95
The issues that can be resolved in this appeal	96
Outstanding issues	100

I THE BACKGROUND

This case

1 . Almost every significant case in the last fifty years in which this Court has come to analyse the scope of the tort of negligence has involved the State or a State controlled defendant. Many of those actions have presented attempts to impose liability for the manner in which such defendants have exercised (or not exercised) their statutory functions. This is striking, but at the same time unsurprising. The extensive apparatus of the modern administrative state carries with it the potential for significant injury to those who choose – or are forced – to rely on the State or its various agencies in its control or support of their livelihoods, property, businesses, or welfare. When injury results from what appears to have been the careless exercise or non-exercise of those powers, it is to be expected that some of those suffering loss will seek to contend that the law provides them with a remedy. Often that loss will be an entirely foreseeable consequence of the manner in which powers are exercised, and frequently those sustaining that injury can posit a close relationship with the State agency that they believe to have caused them damage. Indeed, on occasion it can be said that such a State defendant has, by reason of the dealings between the injured party and the State, assumed a particular responsibility to them.

2 . However, any impression that these elements of carelessness, proximity, foreseeability of loss and actuality of damage will, when combined, in and of themselves generate liability in private law for losses caused by the negligence of State defendants has to be set against broader issues of principle and policy which are in play when it is sought to make the State accountable in damages for injury sustained as a result of alleged negligence arising from acts or omissions undertaken on foot of statutory functions. Sometimes, decisions said to have been made without due regard to their impact upon a particular claimant are reached with a view to balancing the demands of competing policies or, for that matter, conflicting interests, and it thus cannot be said that the State body has breached an identifiable ‘ standard of care’ as this is understood in the law of negligence. Often it can be said that a particular power or function is peculiarly governmental and without an analogue in private relations, so that it is in principle wrong to superimpose the general law of negligence on the exercise of that power. In many cases, a claim in negligence in these circumstances involves a complaint not about the infliction of a loss, but instead arises from the failure to confer a benefit – a distinction which invariably complicates the analysis of any asserted liability in the law of negligence. It will happen in some cases that the very nature of the governmental activity in play will be such that the losses are purely economic, with the attendant restrictions on liability arising from the general law of negligence. Moreover, when a defendant has been acting under the umbrella of a statutory provision, it may be right to consider whether the legislator intended that persons injured by the manner in which that provision was operated or applied could sue to recover damages. And, of course, statutory powers are regularly conferred to advance a general public interest, not to protect a discrete category of persons, so that it might be said that the law should in some situations enable broader issues of policy to trump the right of a particular plaintiff to recoup what would otherwise be categorised as a negligently inflicted loss.

3 . This case squarely presents all of these issues. Between 2002 and 2004 the plaintiffs 2 invested a total of €14.25M in four new mussel dredging vessels. This represented 60% of the

total cost of those boats. They did so with the active...